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fault. (c.) Items contested and adjudicated on. As to a number of these our clients succeeded, and as to those in respect of which they failed they were not chargeable with vexatious conduct: Seton on Judgments and Orders(1); Mackenzie v. Taylor(2); Hilliard v. Fulford(3); Croggan v. Allen (4).

Stilling, for the other children of Eliza Isaac : —

There is no reason for condemning the infants in costs: Daniell's Chancery Practice(5); Simpson on Infants(6); The Earl of Orford v. Churchill(7); Mandeno v. Mandeno(8); Chambers on Infants(9); Vivian v. Kennelly(10).

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There is ground for the suggested division of the items of the accounts. There had been no demand for accounts before action brought. The trustees had agreed to bring before the Court the only question that had been raised, and objected to a general administration suit. Previously to this there has been no other question raised, no charge of maladministration, and no complaint as to not filing accounts in the Supreme Court; and accounts had been filed in the Stamp Office containing all the items which were afterwards disputed. In the cases cited by the other side there had been misconduct on the part of the trustees. Nothing of the kind is proved in this case.

WILLIAMS, J. :—

Cur. adv. vult.

There is nothing whatever in the present case to prevent the application of the ordinary rule, or to deprive the trustees of the will of their right to be paid the costs, charges, and expenses of the action out of the estate of the testator. The only thing in the nature of a default that can be seriously suggested is that the executors did not comply with the rules of 1844 and 1863 and file accounts. I have already dealt with this matter in the judgment delivered on the 1st of February, 1895, and I see no reason to alter the opinion 1 then expressed. The pleadings and proceedings in the action sufficiently show that this omission to file can in no sense be

(1) 5th ed. 1269. (2) 7 Beav. 467. (3) 4 Ch.D. 389.

(4) 22 Ch.D. 101.

(5) 6th ed. 1884.

(6) 2nd ed. 498.

(7) 3 V. & B. 59.
(8) Kay, Append. ii.
(9) 1st ed. 728.

(10) 63 L.T. 778.

S.C.

1901.

MILLS

v.

ISAAC.

S.C. 1901.

MILLS

บ.

ISAAC.

said to have been a cause of the litigation. The trustees, however, also ask for the costs specified in the notice of motion as against the counterclaiming defendants. I am of opinion that as to some of these costs the trustees are entitled to what they ask. Up to and until the report of the Registrar and accountant, on the 2nd of November, 1893, the proceedings were those of an ordinary administration action. That report states that the defendants, Eliza Isaac, W. P. Isaac, and E. S. Isaac, and the plaintiff by counterclaim, William Isaac, and the other children of the said William Isaac and Eliza Isaac, by their guardian, John Mouat, have sought to charge the plaintiffs with the items set out in the surcharge of the said defendants and plaintiffs. These items of surcharge were subsequently, on the 7th of November, 1893, filed as an amendment to the counterclaim. In addition to these items of surcharge, the report of the Registrar and accountant sets out a number of items not passed by the Registrar, but objected to both as to amount and otherwise. These surcharges and disputed items amount in value to many thousands of pounds. The case, therefore, from that time forward took the form of a series of claims by the beneficiaries against the trustees in respect of alleged breaches of trust. In all of these, except in a few items amounting in the whole to less than £600, the beneficiaries have failed. In the items in which the beneficiaries have succeeded, the trustees were guilty of nothing more than honest mistake, such as paving moneys to a wrong account, paying them in misapprehension of the law, and so forth. I think it clear that the parties who by the Registrar's report are shown to have made these claims against the trustees should pay the costs of the claims which they have asserted, and which afterwards they have abandoned or have failed to establish. The whole of the proceedings in the action subsequent to the preparation and settlement of the Registrar's report, as set out under headings 1 to (n), inclusive, in paragraph 2 of the notice of motion, except under heading (n), "Costs reserved under "orders made prior to the Registrar's report," are either wholly or in the main attributable to these claims. All these costs, therefore, must be paid, except such a proportion of them as are attributable to the items on which the trustees have failed.

There is no reason why the order for costs should not be made against the infants. They are shown by the Registrar's

report to have been litigant parties. If a precedent were wanted for making them liable for costs it is to be found in the judgment of the Privy Council pronounced in respect of some of these very items. These costs will have to be paid by the parties mentioned in the Registrar's report as seeking to charge the trustees. The principle I have adopted is that, so far as the action can be said to be an ordinary administration action, the beneficiaries are not liable for costs; but in so far as they impeach the conduct of the trustees, and seek unsuccessfully to establish claims on them, they are liable. This principle is recognised in the cases of In re Brook(1) and Williams v. Jones(2).

The trustees are entitled to costs, charges, and expenses taxed as between solicitor and client, as claimed in paragraph 3 of the notice of motion. So far as Mrs. Isaac is concerned, the judgment for costs must be a qualified form of judgment as against a married woman.

Solicitors for the trustees: Smith, Chapman, & Sinclair (Dunedin).

Solicitors for Mrs. Isaac, William Percy Isaac, and Emily Sarah Isaac Bathgate & Woodhouse (Dunedin).

Solicitor for the infant children of Mrs. Isaac: F. J. Stilling (Dunedin).

NOTE. In settling the decree Woodhouse claimed to have a clause inserted ordering the items on which they had failed. his intention to have so ordered, clause.

(1) 29 W.R. 821.

trustees to pay the costs of
Williams, J., said it was not
and declined to insert such a

(2) 34 Ch.D. 120.

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S.C.

BAILEY v. PRATT.

IN BANCO.

CHRISTCHURCH. Gaming-Failure to take Reasonable Steps to prevent-Negligence—“ The

1902. Feb 13, 19. DENNISTON, J.

Licensing Act, 1881," Section 155.

Failure to take reasonable steps to prevent billiards being played, which amounts to mere negligence or carelessness, will not support a conviction on a charge against an innkeeper-that he did, during the time his licensed premises were directed to be closed, allow billiards to be played therein-under section 155 of "The Licensing Act, 1881," unless such negligence or carelessness is in itself evidence of connivance. Cundy v. Le Cocq(1) discussed.

(1) 13 Q.B.D. 207.

CASE stated by the Stipendiary Magistrate, H. W. Bishop,

Esq., under Part III., Title I., of "The Justices of the Peace
Act, 1882."

The appellant, the licensee of a hotel at Lyttelton, was charged under section 155 of "The Licensing Act, 1881," that he did, on Sunday, the 22nd of September, 1901, upon his licensed premises known as the Albion Hotel, Lyttelton, allow billiards to be played by Howard Bailey and Darcy Hamilton.

On the hearing it was proved that about 2.15 p.m. on the date mentioned the respondent, a constable, entered the hotel by the main entrance, and, hearing the sound of billiardballs, he went into the billiard-room, where he found the licensee's son and Hamilton playing billiards. Two other persons, residents of Christchurch, were also in the room. The licensee was on the premises at the time, and came into the billiard-room while the constable was there. He at once stopped the playing, and remonstrated with his son for what he had done. There was no evidence that the licensee knew prior to his coming into the room that billiards were being played.

On these facts the Magistrate convicted, holding that the licensee failed to take reasonable steps to prevent billiards being played.

Kippenberger, for the appellant:

As the true ground of this appeal is that there was no evidence to justify the conviction, the evidence ought to have been

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set out: Bethune v. Churches(1); and see also section 236 of The Justices of the Peace Act, 1882." Actual or constructive knowledge on the part of the person charged must be proved to support a conviction for suffering gaming: Bosley v. Davies(2); Redgate v. Haynes (3); Somerset v. Hart(4). There was no evidence to show any connivance or wilful blindness on the part of the licensed person, although gaming had taken place to the knowledge of a servant not in charge of the licensed premises. Honest negligence is not enough to support a conviction: Jull v. Treanor(5): the negligence must be such as to amount to connivance. In Somerset v. Wade (6) it was held that a licensee could not be convicted of permitting drunkenness when it was proved that, although the person supplied was drunk, the licensee did not know it.

Stringer, for the respondent:

The Magistrate must be taken to have found that, under the circumstances, the licensee had not taken reasonable steps to prevent gaming, and therefore connived at it or had constructive knowledge. This is an offence against public order, and knowledge is not essential: Cundy v. Le Cocq(7); Bond v. Evans(8). The object of the Act is to insure due control over the premises. It is the duty of the licensee to take care not to allow any one to play billiards; the Magistrate has found that he did not discharge this duty: Crabtree v. Hole(9). In Bosley v. Davies(2), Cockburn, C.J., says(10), "A man may "be said to suffer' a thing to be done if it is done through his negligence"; and Prendergast, C.J., in Jull v. Treanor(11), clearly indicates that in a certain "class of offences against the licensing law negligence on the part of the licensee may render him liable, though personally inno"cent"; and he goes on, "for instance, penalties are imposed "on the licensee who suffers' certain things to be done on the premises, such as gaming." And Mathew, J., in Somerset v. Wade (6), says(12), "It comes to this, that a licensed person cannot be convicted of suffering gaming in the absence of "knowledge, or connivance, or carelessness on his part."

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66

66

66

Kippenberger in reply.

(1) 17 N.Z. L.R. 129.

S.C.

1902.

BAILEY

で、

PRATT.

(2) 1 Q.B.D. 84.

(3) 1 Q.B.D. 89.

(4) 12 Q.B.D. 360.

(5) 14 N.Z. L.R. 513.

(6) [1894] 1 Q.B. 574.

(7) 13 Q.B.D. 207.

(8) 21 Q.B.D. 249.

(9) 43 J.P. 799.

(10) at p. 87.

(11) 14 N.Z. L.R. 513, 517.

(12) at p. 576.

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